united states v. sharpe, 470 u.s. 675 (1985)

8/17/2019 United States v. Sharpe, 470 U.S. 675 (1985)

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470 U.S. 675

105 S.Ct. 1568

84 L.Ed.2d 605

UNITED STATES, Petitioner

v.William Harris SHARPE and Donald Davis Savage.

No. 83-529.

Argued Nov. 27, 1984.

Decided March 20, 1985.

Syllabus

A Drug Enforcement Administration (DEA) agent, while patrolling a

highway in an area under surveillance for suspected drug trafficking,

noticed an apparently overloaded pickup truck with an attached camper

traveling in tandem with a Pontiac. Respondent Savage was driving the

truck, and respondent Sharpe was driving the Pontiac. After following the

two vehicles for about 20 miles, the agent decided to make an"investigative stop" and radioed the South Carolina State Highway Patrol

for assistance. An officer responded, and he and the DEA agent continued

to follow the two vehicles. When they attempted to stop the vehicles, the

Pontiac pulled over to the side of the road, but the truck continued on,

pursued by the state officer. After identifying himself and obtaining

identification from Sharpe, the DEA agent attempted to radio the State

Highway Patrol officer. The DEA agent was unable to contact the state

officer to see if he had stopped the Pontiac, so he radioed the local policefor help. In the meantime, the state officer had stopped the truck,

questioned Savage, and told him that he would be held until the DEA

agent arrived. The agent, who had left the local police with the Pontiac,

arrived at the scene approximately 15 minutes after the truck had been

stopped. After confirming his suspicion that the truck was overloaded and

upon smelling marihuana, the agent opened the rear of the camper without

Savage's permission and observed a number of burlap-wrapped bales

resembling bales of marihuana that the agent had seen in previousinvestigations. The agent then placed Savage under arrest and, returning

to the Pontiac, also arrested Sharpe. Chemical tests later showed that the

bales contained marihuana. Respondents were charged with federal drug


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offenses, and, after the District Court denied their motion to suppress the

contraband, were convicted. The Court of Appeals reversed, holding that

because the investigative stops failed to meet the Fourth Amendment's

requirement of brevity governing detentions on less than probable cause,

the marihuana should have been suppressed as the fruit of unlawful

seizures.

Held: The detention of Savage clearly met the Fourth Amendment's

standard of reasonableness. Pp. 682-688.

(a) In evaluating the reasonableness of an investigative stop, this Court

examines "whether the officer's action was justified at its inception, and

whether it was reasonably related in scope to the circumstances which

justified the interference in the first place." Terry v. Ohio, 392 U.S. 1, 20,

88 S.Ct. 1868, 1879, 20 L.Ed.2d 889. As to the first part of the inquiry,

the Court of Appeals assumed that the officers had an articulable and

reasonable suspicion that respondents were engaged in marihuana

trafficking, and the record abundantly supports that assumption, given the

circumstances when the officers attempted to stop the Pontiac and the

truck. As to the second part of the inquiry, while the brevity of an

investigative detention is an important factor in determining whether the

detention is unreasonable, courts must also consider the purposes to be

served by the stop as well as the time reasonably needed to effectuate

those purposes. The Court of Appeals' decision would effectively establish

a per se rule that a 20-minute detention is too long to be justified under the

Terry doctrine. Such a result is clearly and fundamentally at odds with this

Court's approach in this area. Pp. 682-686.

(b) In assessing whether a detention is too long in duration to be justified

as an investigative stop, it is appropriate to examine whether the police

diligently pursued a means of investigation that was likely to confirm or

dispel their suspicions quickly, during which time it was necessary todetain the defendant. Here, the DEA agent diligently pursued his

investigation, and clearly no delay unnecessary to the investigation was

involved. Pp. 686-688.

712 F.2d 65 (CA4 1983), reversed and remanded.

Andrew L. Frey, Washington, D.C., for petitioner.

Mark J. Kadish, Atlanta, Ga., as amicus curiae in support of the judgment

below, by special order of the Court, for the respondents.

Chief Justice BURGER delivered the opinion of the Court.


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* A.

1 We granted certiorari to decide whether an individual reasonably suspected of

engaging in criminal activity may be detained for a period of 20 minutes, when

the detention is necessary for law enforcement officers to conduct a limited

investigation of the suspected criminal activity.

2

3 On the morning of June 9, 1978, Agent Cooke of the Drug Enforcement

Administration (DEA) was on patrol in an unmarked vehicle on a coastal road

near Sunset Beach, North Carolina, an area under surveillance for suspected

drug trafficking. At approximately 6:30 a.m., Cooke noticed a blue pickup

truck with an attached camper shell traveling on the highway in tandem with a

blue Pontiac Bonneville. Respondent Savage was driving the pickup, andrespondent Sharpe was driving the Pontiac. The Pontiac also carried a

passenger, Davis, the charges against whom were later dropped. Observing that

the truck was riding low in the rear and that the camper did not bounce or sway

appreciably when the truck drove over bumps or around curves, Agent Cooke

concluded that it was heavily loaded. A quilted material covered the rear and

side windows of the camper.

4 Cooke's suspicions were sufficiently aroused to follow the two vehicles for approximately 20 miles as they proceeded south into South Carolina. He then

decided to make an "investigative stop" and radioed the State Highway Patrol

for assistance. Officer Thrasher, driving a marked patrol car, responded to the

call. Almost immediately after Thrasher caught up with the procession, the

Pontiac and the pickup turned off the highway and onto a campground road.1

Cooke and Thrasher followed the two vehicles as the latter drove along the

road at 55 to 60 miles an hour, exceeding the speed limit of 35 miles an hour.

The road eventually looped back to the highway, onto which Savage andSharpe turned and continued to drive south.

5 At this point, all four vehicles were in the middle lane of the three right-hand

lanes of the highway. Agent Cooke asked Officer Thrasher to signal both

vehicles to stop. Thrasher pulled alongside the Pontiac, which was in the lead,

turned on his flashing light, and motioned for the driver of the Pontiac to stop.

As Sharpe moved the Pontiac into the right lane, the pickup truck cut between

the Pontiac and Thrasher's patrol car, nearly hitting the patrol car, andcontinued down the highway. Thrasher pursued the truck while Cooke pulled

up behind the Pontiac.


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6 Cooke approached the Pontiac and identified himself. He requested

identification, and Sharpe produced a Georgia driver's license bearing the name

of Raymond J. Pavlovich. Cooke then attempted to radio Thrasher to determine

whether he had been successful in stopping the pickup truck, but he was unable

to make contact for several minutes, apparently because Thrasher was not in his

patrol car. Cooke radioed the local police for assistance, and two officers from

the Myrtle Beach Police Department arrived about 10 minutes later. Asking the

two officers to "maintain the situation," Cooke left to join Thrasher.

7 In the meantime, Thrasher had stopped the pickup truck about one-half mile

down the road. After stopping the truck, Thrasher had approached it with his

revolver drawn, ordered the driver, Savage, to get out and assume a "spread

eagled" position against the side of the truck, and patted him down. Thrasher

then holstered his gun and asked Savage for his driver's license and the truck's

vehicle registration. Savage produced his own Florida driver's license and a bill

of sale for the truck bearing the name of Pavlovich. In response to questions

from Thrasher concerning the ownership of the truck, Savage said that the

truck belonged to a friend and that he was taking it to have its shock absorbers

repaired. When Thrasher told Savage that he would be held until the arrival of

Cooke, whom Thrasher identified as a DEA agent, Savage became nervous,

said that he wanted to leave, and requested the return of his driver's license.

Thrasher replied that Savage was not free to leave at that time.

8 Agent Cooke arrived at the scene approximately 15 minutes after the truck had

been stopped. Thrasher handed Cooke Savage's license and the bill of sale for

the truck; Cooke noted that the bill of sale bore the same name as Sharpe's

license. Cooke identified himself to Savage as a DEA agent and said that he

thought the truck was loaded with marihuana. Cooke twice sought permission

to search the camper, but Savage declined to give it, explaining that he was not

the owner of the truck. Cooke then stepped on the rear of the truck and,

observing that it did not sink any lower, confirmed his suspicion that it was

probably overloaded. He put his nose against the rear window, which was

covered from the inside, and reported that he could smell marihuana. Without

seeking Savage's permission, Cooke removed the keys from the ignition,

opened the rear of the camper, and observed a large number of burlap-wrapped

bales resembling bales of marihuana that Cooke had seen in previous

investigations. Agent Cooke then placed Savage under arrest and left him with

Thrasher.

9 Cooke returned to the Pontiac and arrested Sharpe and Davis. Approximately

30 to 40 minutes had elapsed between the time Cooke stopped the Pontiac and


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B

the time he returned to arrest Sharpe and Davis. Cooke assembled the various

parties and vehicles and led them to the Myrtle Beach police station. That

evening, DEA agents took the truck to the Federal Building in Charleston,

South Carolina. Several days later, Cooke supervised the unloading of the

truck, which contained 43 bales weighing a total of 2,629 pounds. Acting

without a search warrant, Cooke had eight randomly selected bales opened and

sampled. Chemical tests showed that the samples were marihuana.

10 Sharpe and Savage were charged with possession of a controlled substance with

intent to distribute it in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

The United States District Court for the District of South Carolina denied

respondents' motion to suppress the contraband, and respondents were

convicted.

11 A divided panel of the Court of Appeals for the Fourth Circuit reversed the

convictions. Sharpe v. United States, 660 F.2d 967 (1981). The majority

assumed that Cooke "had an articulable and reasonable suspicion that Sharpe

and Savage were engaged in marijuana trafficking when he and Thrasher

stopped the Pontiac and the truck." Id., at 970. But the court held the

investigative stops unlawful because they "failed to meet the requirement of

brevity" thought to govern detentions on less than probable cause. Ibid. Basingits decision solely on the duration of the respondents' detentions, the majority

concluded that "the length of the detentions effectively transformed them into

de facto arrests without bases in probable cause, unreasonable seizures under

the Fourth Amendment." Ibid. The majority then determined that the samples

of marihuana should have been suppressed as the fruit of respondents' unlawful

seizures. Id., at 971. As an alternative basis for its decision, the majority held

that the warrantless search of the bales taken from the pickup violated Robbins

v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981). JudgeRussell dissented as to both grounds of the majority's decision.

12 The Government petitioned for certiorari, asking this Court to review both of

the alternative grounds held by the Court of Appeals to justify suppression. We

granted the petition, vacated the judgment of the Court of Appeals, and

remanded the case for further consideration in the light of the intervening

decision in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572

(1982). United States v. Sharpe, 457 U.S. 1127, 102 S.Ct. 2951, 73 L.Ed.2d1345 (1982).

13 On remand, a divided panel of the Court of Appeals again reversed the


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II

A.

convictions. 712 F.2d 65 (1983). The majority concluded that, in the light of

Ross, it was required to "disavow" its alternative holding disapproving the

warrantless search of the marihuana bales. But, "[f]inding that Ross does not

adversely affect our primary holding" that the detentions of the two defendants

constituted illegal seizures, the court readopted the prior opinion as modified.

Ibid. The majority declined "to reexamine our principal holding or to reargue

the same issues that were addressed in detail in the original majority anddissenting opinions," reasoning that its action complied with this Court's

mandate. The panel assumed that "[h]ad [this] Court felt that a reversal was in

order, it could and would have said so." Id., at 65, n. 1. Judge Russell again

dissented.

14 We granted certiorari, 467 U.S. 1250, 104 S.Ct. 3531, 82 L.Ed.2d 837 (1984),

and we reverse.2

15 The Fourth Amendment is not, of course, a guarantee against all searches and

seizures, but only against unreasonable searches and seizures. The authority

and limits of the Amendment apply to investigative stops of vehicles such as

occurred here. United States v. Hensley, 469 U.S. 221, 226, 105 S.Ct. 675, 679,83 L.Ed.2d 604 (1985); United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct.

690, 694, 66 L.Ed.2d 621 (1981); Delaware v. Prouse, 440 U.S. 648, 663, 99

S.Ct. 139, 1401, 59 L.Ed.2d 660 (1979); United States v. Brignoni-Ponce, 422

U.S. 873, 878, 880, 95 S.Ct. 2574, 2578, 2579, 45 L.Ed.2d 607 (1975). In Terry

v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), we adopted a dual

inquiry for evaluating the reasonableness of an investigative stop. Under this

approach, we examine

16 "whether the officer's action was justified at its inception, and whether it was

reasonably related in scope to the circumstances which justified the interference

in the first place." Id., at 20, 88 S.Ct., at 1879.

17 As to the first part of this inquiry, the Court of Appeals assumed that the police

had an articulable and reasonable suspicion that Sharpe and Savage were

engaged in marihuana trafficking, given the setting and all the circumstances

when the police attempted to stop the Pontiac and the pickup. 660 F.2d, at 970.That assumption is abundantly supported by the record.3 As to the second part

of the inquiry, however, the court concluded that the 30- to 40-minute detention

of Sharpe and the 20-minute detention of Savage "failed to meet the [Fourth


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Amendment's] requirement of brevity." Ibid.

18 It is not necessary for us to decide whether the length of Sharpe's detention was

unreasonable, because that detention bears no causal relation to Agent Cooke's

discovery of the marihuana. The marihuana was in Savage's pickup, not in

Sharpe's Pontiac; the contraband introduced at respondents' trial cannot

logically be considered the "fruit" of Sharpe's detention. The only issue in thiscase, then, is whether it was reasonable under the circumstances facing Agent

Cooke and Officer Thrasher to detain Savage, whose vehicle contained the

challenged evidence, for approximately 20 minutes. We conclude that the

detention of Savage clearly meets the Fourth Amendment's standard of

reasonableness.

19 The Court of Appeals did not question the reasonableness of Officer Thrasher's

or Agent Cooke's conduct during their detention of Savage. Rather, the court

concluded that the length of the detention alone transformed it from a Terry

stop into a de facto arrest. Counsel for respondents, as amicus curiae, assert that

conclusion as their principal argument before this Court, relying particularly

upon our decisions in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60

L.Ed.2d 824 (1979); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75

L.Ed.2d 229 (1983); and United States v. Place, 462 U.S. 696, 103 S.Ct. 2637,

77 L.Ed.2d 110 (1983). That reliance is misplaced.

20 In Dunaway, the police picked up a murder suspect from a neighbor's home and

brought him to the police station, where, after being interrogated for an hour, he

confessed. The State conceded that the police lacked probable cause when they

picked up the suspect, but sought to justify the warrantless detention and

interrogation as an investigative stop. The Court rejected this argument,

concluding that the defendant's detention was "in important respects

indistinguishable from a traditional arrest." 442 U.S., at 212, 99 S.Ct., at 2256.

Dunaway is simply inapposite here: the Court was not concerned with the

length of the defendant's detention, but with events occurring during the

detention.4

21 In Royer, government agents stopped the defendant in an airport, seized his

luggage, and took him to a small room used for questioning, where a search of

the luggage revealed narcotics. The Court held that the defendant's detention

constituted an arrest. See 460 U.S., at 503, 103 S.Ct., at 1327 (plurality

opinion); id., at 509, 103 S.Ct., at 1330 (POWELL, J., concurring); ibid.

(BRENNAN, J., concurring in result). As in Dunaway, though, the focus was

primarily on facts other than the duration of the defendant's detention—

particularly the fact that the police confined the defendant in a small airport


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room for questioning.

22 The plurality in Royer did note that "an investigative detention must be

temporary and last no longer than is necessary to effectuate the purpose of the

stop." 460 U.S., at 500, 103 S.Ct., at 1325. The Court followed a similar

approach in Place. In that case, law enforcement agents stopped the defendant

after his arrival in an airport and seized his luggage for 90 minutes to take it toa narcotics detection dog for a "sniff test." We decided that an investigative

seizure of personal property could be justified under the Terry doctrine, but that

"[t]he length of the detention of respondent's luggage alone precludes the

conclusion that the seizure was reasonable in the absence of probable cause."

462 U.S., at 709, 103 S.Ct., at 2645. However, the rationale underlying that

conclusion was premised on the fact that the police knew of respondent's

arrival time for several hours beforehand, and the Court assumed that the police

could have arranged for a trained narcotics dog in advance and thus avoided thenecessity of holding respondent's luggage for 90 minutes. "[I]n assessing the

effect of the length of the detention, we take into account whether the police

diligently pursue their investigation." Ibid.; see also Royer, supra, 460 U.S., at

500, 103 S.Ct., at 1325.

23 Here, the Court of Appeals did not conclude that the police acted less than

diligently, or that they unnecessarily prolonged Savage's detention. Place and

Royer thus provide no support for the Court of Appeals' analysis.

24 Admittedly, Terry, Dunaway, Royer, and Place, considered together, may in

some instances create difficult line-drawing problems in distinguishing an

investigative stop from a de facto arrest. Obviously, if an investigative stop

continues indefinitely, at some point it can no longer be justified as an

investigative stop. But our cases impose no rigid time limitation on Terry stops.

While it is clear that "the brevity of the invasion of the individual's Fourth

Amendment interests is an important factor in determining whether the seizure

is so minimally intrusive as to be justifiable on reasonable suspicion," United

States v. Place, supra, 462 U.S., at 709, 103 S.Ct., at 2645, we have

emphasized the need to consider the law enforcement purposes to be served by

the stop as well as the time reasonably needed to effectuate those purposes.

United States v. Hensley, 469 U.S., at 228-229, 234-235, 105 S.Ct., at 680-681,

683-684; Place, supra, 462 U.S., at 703-704, 709, 103 S.Ct., at 2642-2643,

2645-2646; Michigan v. Summers, 452 U.S. 692, 700, and n. 12, 101 S.Ct.

2587, 2593 and n. 12, 69 L.Ed.2d 340 (1981) (quoting 3 W. LaFave, Searchand Seizure § 9.2, pp. 36-37 (1978)). Much as a "bright line" rule would be

desirable, in evaluating whether an investigative detention is unreasonable,

common sense and ordinary human experience must govern over rigid criteria.


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B

25 We sought to make this clear in Michigan v. Summers, supra:

26 "If the purpose underlying a Terry stop—investigating possible criminal

activity—is to be served, the police must under certain circumstances be able to

detain the individual for longer than the brief time period involved in Terry and

Adams [v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) ]."

452 U.S., at 700, n. 12, 101 S.Ct., at 2593.

27 Later, in Place, we expressly rejected the suggestion that we adopt a hard-and-

fast time limit for a permissible Terry stop:

28 "We understand the desirability of providing law enforcement authorities with a

clear rule to guide their conduct. Nevertheless, we question the wisdom of a

rigid time limitation. Such a limit would undermine the equally important needto allow authorities to graduate their responses to the demands of any particular

situation." 462 U.S., at 709, n. 10, 103 S.Ct., at 2646.

29 The Court of Appeals' decision would effectively establish a per se rule that a

20-minute detention is too long to be justified under the Terry doctrine. Such a

result is clearly and fundamentally at odds with our approach in this area.

30 In assessing whether a detention is too long in duration to be justified as an

investigative stop, we consider it appropriate to examine whether the police

diligently pursued a means of investigation that was likely to confirm or dispel

their suspicions quickly, during which time it was necessary to detain the

defendant. See Michigan v. Summers, supra, at 701, n. 14, 101 S.Ct., at 2594,

n. 14 (quoting 3 W. LaFave, Search and Seizure § 9.2, p. 40 (1978)); see also

Place, 462 U.S., at 709, 103 S.Ct., at 2645-2646; Royer, 460 U.S., at 500, 103S.Ct., at 1325. A court making this assessment should take care to consider

whether the police are acting in a swiftly developing situation, and in such

cases the court should not indulge in unrealistic second-guessing. See generally

post, at 712-716 (BRENNAN, J., dissenting). A creative judge engaged in post

hoc evaluation of police conduct can almost always imagine some alternative

means by which the objectives of the police might have been accomplished.

But "[t]he fact that the protection of the public might, in the abstract, have been

accomplished by 'less intrusive' means does not, itself, render the search

unreasonable." Cady v. Dombrowski, 413 U.S. 433, 447, 93 S.Ct. 2523, 2531,

37 L.Ed.2d 706 (1973); see also United States v. Martinez-Fuerte, 428 U.S.

543, 557, n. 12, 96 S.Ct. 3074, 3082, n. 12, 49 L.Ed.2d 1116 (1976). The


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question is not simply whether some other alternative was available, but

whether the police acted unreasonably in failing to recognize or to pursue it.

31 We readily conclude that, given the circumstances facing him, Agent Cooke

pursued his investigation in a diligent and reasonable manner. During most of

Savage's 20-minute detention, Cooke was attempting to contact Thrasher and

enlisting the help of the local police who remained with Sharpe while Cookeleft to pursue Officer Thrasher and the pickup. Once Cooke reached Officer

Thrasher and Savage,5 he proceeded expeditiously: within the space of a few

minutes, he examined Savage's driver's license and the truck's bill of sale,

requested (and was denied) permission to search the truck, stepped on the rear

bumper and noted that the truck did not move, confirming his suspicion that it

was probably overloaded. He then detected the odor of marihuana.

32 Clearly this case does not involve any delay unnecessary to the legitimate

investigation of the law enforcement officers. Respondents presented no

evidence that the officers were dilatory in their investigation. The delay in this

case was attributable almost entirely to the evasive actions of Savage, who

sought to elude the police as Sharpe moved his Pontiac to the side of the road.6

Except for Savage's maneuvers, only a short and certainly permissible pre-

arrest detention would likely have taken place. The somewhat longer detention

was simply the result of a "graduate[d] . . . respons[e] to the demands of [the]

particular situation," Place, supra, 462 U.S., at 709, n. 10, 103 S.Ct., at 2646, n.10.

33 We reject the contention that a 20-minute stop is unreasonable when the police

have acted diligently and a suspect's actions contribute to the added delay about

which he complains. The judgment of the Court of Appeals is reversed, and the

case is remanded for further proceedings consistent with this opinion.

34 Reversed and remanded.

35 Justice BLACKMUN, concurring.

36 In view of respondents' fugitive status, see ante, at 681-682, n. 2, I would have

vacated the judgment of the Court of Appeals and remanded the case to that

court with directions to dismiss the respondents' appeal from the District

Court's judgment to the Court of Appeals. See Molinaro v. New Jersey, 396U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970).

37 This Court, however, does not follow that path, and chooses to decide the case


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on the merits. I therefore also reach the merits and join the Court's opinion.

38 Justice MARSHALL, concurring in the judgment.

39 I join the result in this case because only the evasive actions of the defendants

here turned what otherwise would have been a permissibly brief Terry stop into

the prolonged encounter now at issue. I write separately, however, because in

my view the Court understates the importance of Terry' s brevity requirement to

the constitutionality of Terry stops.

40 * Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968),

recognized a "narrowly drawn" exception to the probable-cause requirement of

the Fourth Amendment for certain seizures of the person that do not rise to the

level of full arrests. Two justifications supported this "major development inFourth Amendment jurisprudence." Pennsylvania v. Mimms, 434 U.S. 106, 115,

98 S.Ct. 330, 336, 54 L.Ed.2d 331 (1977) (STEVENS, J., dissenting). First, a

legitimate Terry stop—brief and narrowly circumscribed—was said to involve

a "wholly different kind of intrusion upon individual freedom" than a

traditional arrest. Terry, 392 U.S., at 26, 88 S.Ct., at 1882. Second, under some

circumstances, the government's interest in preventing imminent criminal

activity could be substantial enough to outweigh the still-serious privacy

interests implicated by a limited Terry stop. Id., at 27, 88 S.Ct., at 1883. Thus,

when the intrusion on the individual is minimal, and when law enforcement

interests outweigh the privacy interests infringed in a Terry encounter, a stop

based on objectively reasonable and articulable suspicions, rather than upon

probable cause, is consistent with the Fourth Amendment.1

41 That Terry was justified in terms of these two rationales was made clear in

subsequent cases. For example, in Dunaway v. New York, 442 U.S. 200, 210, 99

S.Ct. 2248, 2255, 60 L.Ed.2d 824 (1979), we explained that Terry rested on

two principles:

42 "First, it defined a special category of Fourth Amendment 'seizures' so

substantially less intrusive than arrests that the general rule requiring probable

cause to make Fourth Amendment 'seizures' reasonable could be replaced by a

balancing test. Second, the application of this balancing test led the Court to

approve this narrowly defined less intrusive seizure on grounds less rigorous

than probable cause. . . ."

43 Similarly, in United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642,

77 L.Ed.2d 110 (1983), the Court held that, "[w]hen the nature and extent of


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the detention are minimally intrusive of the individual's Fourth Amendment

interests, the opposing law enforcement interests can support a seizure based on

less than probable cause." See also id., at 704, 103 S.Ct., at 2643 ("The context

of a particular law enforcement practice, of course, may affect the

determination whether a brief intrusion on Fourth Amendment interests on less

than probable cause is essential to effective criminal investigation"). Even a

stop that lasts no longer than necessary to complete the investigation for whichthe stop was made may amount to an illegal arrest if the stop is more than

"minimally intrusive." The stop must first be found not unduly intrusive before

any balancing of the government's interest against the individual's becomes

appropriate. See also Michigan v. Summers, 452 U.S. 692, 697-699, 101 S.Ct.

2587, 2591-2592, 69 L.Ed.2d 340 (1981).

44 To those who rank zealous law enforcement above all other values, it may be

tempting to divorce Terry from its rationales and merge the two prongs of Terry into the single requirement that the police act reasonably under all the

circumstances when they stop and investigate on less than probable cause. Cf.

Posner, Rethinking the Fourth Amendment, 1981 S.Ct.Rev. 49, 71. As long as

the police are acting diligently to complete their investigation, it is difficult to

maintain that law enforcement goals would better be served by releasing an

individual after a brief stop than by continuing to detain him for as long as

necessary to discover whether probable cause can be established. But while the

preservation of order is important to any society, the "needs of law enforcementstand in constant tension with the Constitution's protections of the individual

against certain exercises of official power. It is precisely the predictability of

these pressures that counsels a resolute loyalty to constitutional safeguards."

Almeida-Sanchez v. United States, 413 U.S. 266, 273, 93 S.Ct. 2535, 2540, 37

L.Ed.2d 596 (1973). Terry must be justified, not because it makes law

enforcement easier, but because a Terry stop does not constitute the sort of

arrest that the Constitution requires be made only upon probable cause.

45 For this reason, in reviewing any Terry stop, the "critical threshold issue is the

intrusiveness of the seizure." United States v. Place, supra, 462 U.S., at 722,

103 S.Ct., at 2653 (BLACKMUN, J., concurring in judgment). Regardless how

efficient it may be for law enforcement officials to engage in prolonged

questioning to investigate a crime, or how reasonable in light of law

enforcement objectives it may be to detain a suspect until various inquiries can

be made and answered, a seizure that in duration, scope, or means goes beyond

the bounds of Terry cannot be reconciled with the Fourth Amendment in theabsence of probable cause. See Dunaway, supra. Legitimate law enforcement

interests that do not rise to the level of probable cause simply cannot turn an

overly intrusive seizure into a constitutionally permissible one.


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46 In my view, the length of the stop in and of itself may make the stop

sufficiently intrusive to be unjustifiable in the absence of probable cause to

arrest.2 Terry "stops" are justified, in part, because they are stops, rather than

prolonged seizures. "[A] stopping differs from an arrest not in the

incompleteness of the seizure but in the brevity of it." 1 W. LaFave & J. Israel,

Criminal Procedure § 3.8, p. 297 (1984).

47 Consistent with the rationales that make Terry stops legitimate, we have

recognized several times that the requirement that Terry stops be brief imposes

an independent and per se limitation on the extent to which officials may seize

an individual on less than probable cause. The Court explicitly so held in Place,

where we invalidated a search that was the product of a lengthy detention; as

the Court said: "The length of the detention . . . alone precludes the conclusion

that the seizure was reasonable in the absence of probable cause. . . . [T]he 90-

minute detention . . . is sufficient to render the seizure unreasonable. . . ."3 462U.S., at 709-710, 103 S.Ct., at 2646. See also United States v. Hensley, 469

U.S. 221, 235, 105 S.Ct. 675, 684, 83 L.Ed.2d 604 (1985) ("[A] detention

might well be so lengthy or intrusive as to exceed the permissible limits of a

Terry stop"); Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75

L.Ed.2d 229 (1983) ("[A]n investigative detention must be temporary . . ."); id.,

at 510-511, 103 S.Ct., at 1331 (BRENNAN, J., concurring in result) ("[A]ny

suggestion that the Terry reasonable-suspicion standard justifies anything but

the briefest of detentions . . . finds no support in the Terry line of cases");Summers, supra, 452 U.S., at 705, n. 21, 101 S.Ct., at 2595, n. 21 (questioning

legality of "prolonged" detention). A Terry stop valid in its inception may

become unduly intrusive on personal liberty and privacy simply by lasting too

long. That remains true even if valid law enforcement objectives account for

the length of the seizure.

48 The requirement that Terry stops be brief no matter what the needs of law

enforcement in the particular case is buttressed by several sound pragmaticconsiderations. First, if the police know they must structure their Terry

encounters so as to confirm or dispel the officer's reasonable suspicion in a brief

time, police practices will adapt to minimize the intrusions worked by these

encounters. Cf. United States v. Place, supra (to assure brevity of Terry airport

stops, narcotic detection dogs must, under some circumstances, be kept in same

airport to which suspect is arriving). Firm adherence to the requirement that

stops be brief forces law enforcement officials to take into account from the

start the serious and constitutionally protected liberty and privacy interestsimplicated in Terry stops, and to alter official conduct accordingly.4

49 Second, a per se ban on stops that are not brief yields the sort of objective


14/45

standards mandated by our Fourth Amendment precedents, standards that

would avoid placing courts in the awkward position of second-guessing police

as to what constitutes reasonable police practice.5 We have recognized that the

methods employed in a Terry stop "should be the least intrusive means

reasonably available to verify or dispel the officer's suspicion in a short period

of time." Florida v. Royer, supra, 460 U.S., at 500, 103 S.Ct., at 1325.6 Yet in

the absence of a per se requirement that stops be brief, defining what means are"least intrusive" is a virtually unmanageable and unbounded task. Whether the

police have acted with due diligence is a function not just of how quickly they

completed their investigation, but of an almost limitless set of alternative ways

in which the investigation might have been completed. For example, in this

case the Court posits that the officers acted with due diligence, but they might

have acted with more diligence had Cooke summoned two rather than one

highway patrolman to assist him, or had Cooke, who had the requisite "training

and experience," stopped the pickup truck—the vehicle thought to be carryingthe marihuana. See generally post, at 712-716 (BRENNAN, J., dissenting). And

if due diligence takes as fixed the amount of resources a community is willing

to devote to law enforcement, officials in one community may act with due

diligence in holding an individual at an airport for 35 minutes while waiting for

the sole narcotics detection dog they possess, while officials who have several

dogs readily available may be dilatory in prolonging an airport stop to even 10

minutes.

50 Constitutional rights should not vary in this manner. Yet in the absence of a

brevity standard that is independent of the actions or needs of the police, that

variance is one of two inescapable results. The other is that the Court will have

to take seriously its requirement that the police act with due diligence, which

will require the Court to inject itself into such issues as whether this or that

alternative investigative method ought to have been employed.7 Cf. United

States v. Martinez-Fuerte, 428 U.S. 543, 565, 96 S.Ct. 3074, 3086, 49 L.Ed.2d

1116 (1976) (One purpose of the warrant requirement "is to prevent hindsightfrom coloring the evaluation of the reasonableness of a search or seizure"). The

better and judicially more manageable rule would be a per se requirement that

Terry stops be brief, for that rule would avoid the Court's measuring police

conduct according to a virtually standardless yardstick.

51 Finally, dissolving the brevity requirement into the general standard that the

seizure simply be reasonable will "inevitably produce friction and resentment

[among the police], for there are bound to be inconsistent and confusingdecisions." Schwartz, Stop and Frisk, 58 J.Crim.L.C. & P.S. 433, 449 (1967).

The police themselves may have done nothing unreasonable in holding a

motorist for one hour while waiting for a registration computer to come back on


15/45

II

line, but surely such a prolonged detention would be unlawful. Indeed, in my

view, as soon as a patrolman called in and learned that the computer was down,

the suspect would have to be released. That is so not because waiting for

information in this circumstance is unreasonable, but simply because the stop

must be brief if it is to be constitutional on less than probable cause. A

"balancing" test suggests that a stop is invalid only if officials have crossed over

some line they should have avoided; the finding that such a "balance" has beenstruck improperly casts a certain moral opprobrium on official conduct. A

brevity requirement makes clear that the Constitution imposes certain

limitations on police powers no matter how reasonably those powers have been

exercised. "[H]air-splitting distinctions that currently plague our Fourth

Amendment jurisprudence" serve nobody's interest, New York v. Quarles, 467

U.S. 649, 664, 104 S.Ct. 2626, 2635, 81 L.Ed.2d 550 (1984) (O'CONNOR, J.,

concurring in part and dissenting in part), but measuring the legitimacy of a

Terry stop by the reasonableness and diligence of the official's actions, rather than by the intrusiveness of the stop, would proliferate such distinctions.

Maintaining the clarity of Terry's brevity requirement will instead breed respect

for the law among both police and citizens.

52 For these reasons, fidelity to the rationales that justify Terry stops requires that

the intrusiveness of the stop be measured independently of law enforcement

needs. A stop must first be found not unduly intrusive, particularly in its length,

before it is proper to consider whether law enforcement aims warrant limitedinvestigation.

53 We have had little occasion to specify the length to which a stop can be

extended before it can no longer be justified on less than probable cause. But

see United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110

(1983) (90-minute seizure too long). In Terry and Adams v. Williams, 407 U.S.143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972), we described the stop

simply as "brief." In United States v. Brignoni-Ponce, 422 U.S. 873, 880, 95

S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975), we upheld a "modest" stop that

"usually consumed no more than a minute." Dunaway v. New York, 422 U.S.

200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), United States v. Martinez-Fuerte,

supra, 428 U.S., at 558, 96 S.Ct., at 3083, and United States v. Hensley, 469

U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985), drew upon Terry to

characterize permissible stops as "brief" ones; Florida v. Royer, 460 U.S. 491,103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), described a legitimate Terry stop as

"temporary." Those stops upheld in these cases all lasted no more than a few

minutes before probable cause was established.8


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III

54 The Court has "decline[d] to adopt any outside time limitation for a permissible

Terry stop." Place, supra, 462 U.S., at 709, 103 S.Ct., at 2646. While a Terry

stop must be brief no matter what the needs of the authorities, I agree that

Terry' s brevity requirement is not to be judged by a stopwatch but rather by the

facts of particular stops. At the same time, the time it takes to "briefly stop [the]

person, ask questions, or check identification," United States v. Hensley, supra,

469 U.S., at 229, 105 S.Ct., at 681, and, if warranted, to conduct a brief pat-down for weapons, see Terry, is typically just a few minutes. In my view,

anything beyond this short period is presumptively a de facto arrest. That

presumption can be overcome by showing that a lengthier detention was not

unduly intrusive for some reason; as in this case, for example, the suspects,

rather than the police, may have prolonged the stop.9 It cannot, however, be

overcome simply by showing that police needs required a more intrusive stop.

For that reason, I regard the American Law Institute's suggested maximum of

20 minutes10

as too long; "any suggestion that the Terry reasonable-suspicionstandard justifies anything but the briefest of detentions or the most limited of

searches finds no support in the Terry line of cases." Royer, supra, 460 U.S., at

510, 103 S.Ct., at 1331 (BRENNAN, J., concurring in result).

55 Difficult questions will no doubt be presented when during these few minutes

an officer learns enough to increase his suspicions but not enough to establish

probable cause. But whatever the proper resolution of this problem, the very

least that ought to be true of Terry's brevity requirement is that, if the initialencounter provides no greater grounds for suspicion than existed before the

stop, the individual must be free to leave after the few minutes permitted for

the initial encounter. Such a clear rule would provide officials with necessary

and desirable certainty and would adequately protect the important liberty and

privacy interests upon which Terry stops infringe.

56 In light of these principles, I cannot join the Court's opinion. The Court offers a

hodgepodge of reasons to explain why the 20-minute stop at issue here was

permissible. At points we are told that the stop was no longer than "necessary"

and that the police acted "diligently" in pursuing their investigation, all of

which seems to suggest that, as long as a stop is no longer than necessary to the

"legitimate investigation of the law enforcement officers," the stop is perfectly

lawful. See ante at 677, 685, 686. As I have just argued, such reasoning puts

the horse before the cart by failing to focus on the critical threshold question of the intrusiveness of the stop, particularly its length. With respect to that

question, the Court seems in one breath to chastise the Court of Appeals for

concluding that the length of a detention alone can transform a Terry stop into a


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IV

de facto arrest, see ante at 680, 682-683, while in another breath the Court

acknowledges that, "if an investigative stop continues indefinitely, at some

point it can no longer be justified as an investigative stop." Ante, at 685.

57 Fortunately, it is unnecessary to try to sort all of this out, for another rationale

offered by the Court adequately disposes of this case. As the Court recognizes:

"The delay in this case was attributable almost entirely to the evasive actions of Savage, who sought to elude the police as Sharpe moved his Pontiac to the side

of the road. Except for Savage's maneuvers, only a short and certainly

permissible pre-arrest detention would likely have taken place." Ante, at 687-

688. With that holding I agree.11 Had Savage pulled over when signalled to, as

did Sharpe, Savage and Sharpe both would have been subjected to only a

permissibly brief Terry stop before the odor of the marihuana would have given

the officers probable cause to arrest.12 Once Cooke caught back up with

Savage, only a few minutes passed before Cooke smelled the marihuana.During these few brief minutes, Savage was subjected to no more than the

identification request and minimal questioning, designed to confirm or dispel

the reasonable suspicion causing the stop, that is legitimate under Terry. While

a 20-minute stop would, under most circumstances, be longer than the limited

intrusion entailed by the brief stop that Terry allows, I believe such a stop is

permissible when a suspect's own actions are the primary cause for prolonging

an encounter beyond the bounds to which Terry's brevity requirement ordinarily

limits such stops. Nothing more is necessary to decide this case, and any further suggestions in the Court's opinion I find unwarranted, confusing, and

potentially corrosive of the principles upon which Terry is grounded.

58 I also cannot join the Court's opinion because it reaches out to decide a wholly

distinct issue not presented and not capable of being treated fairly without

further development of a factual record. The Court of Appeals assumed,without deciding, that an objectively reasonable suspicion of criminal activity

existed to justify these stops. The District Court, after listening to the officers

explain the basis on which they purported to make the stop, and after testimony

taking up 450 pages of transcript, found the legality of the initial stop to present

"a real close question." App. 45. This question was not presented in the

certiorari petition and not a single word is devoted to it in the briefs. Yet in

what can only be construed as a thinly disguised attempt to decide the question,

the Court, from its position atop the judicial system, concludes that the Court of Appeals' assumption arguendo that the stop was legal is "abundantly"

supported by the record, ante, at 682—an abundance not evident to the District

Court. Cf. Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84


18/45

L.Ed.2d 518 (1985) (district court credibility determinations entitled to

strongest deference).

59 Of course, the proper approach to this issue is illustrated by United States v.

Place, 462 U.S., at 700, n.1, 103 S.Ct., at 2640, n. 1, where, as here, the Court

of Appeals had assumed the existence of reasonable suspicion and certiorari had

not been granted on the question; the Court correctly concluded that it had "nooccasion to address the issue here." Ibid. Consistency, however, hardly has

been a hallmark of the current Court's Fourth Amendment campaigns.

60 Moreover, aside from the fact that the reasonable-suspicion issue was not

presented, briefed, or argued by the parties, the Court's handling of this issue

reveals the defects of engaging in an airy factual inquiry unaided by full lower

court review. First, the Court ignores relevant evidence relied on by the District

Court when the latter concluded that, although the question was "real close,"

the initial stop was lawful; for example, the Court does not refer to evidence

before the District Court regarding how common it would have been for a

pickup truck like that driven by Savage to be found in this area. See

Defendant's Exhibit 10. Perhaps a stop of a particular type of truck would be

reasonable in some areas and not in others, which is why evidence was

submitted on the number of such trucks in this area; but in its haste to validate

the actions here, the Court seems to suggest that pickup trucks with camper

shells are always, anywhere items engendering reasonable suspicion. Second,the Court makes ill-considered inferences to concoct those few facts upon

which it does rely to uphold the initial stop. The Court first asserts that both

drivers "started speeding as soon as Officer Thrasher began following them in

his marked car," ante, at 683, n. 3, and then suggests that respondents sped

because they noticed Thrasher and were seeking to evade him. Thrasher,

however, had joined the caravan at least one minute before respondents began

speeding. 4 Record 140-141. In addition, respondents did not speed until they

left the highway, at which point they continued at their highway speed of 55 to60 miles an hour through a 3-mile campground road for which the posted limit

was 35 miles an hour. Any implication that respondents sped because they

noticed Thrasher or to "evade" the officers is unsupported by common sense or

by the record. Sharpe and Savage hardly could have expected to "evade" the

police on a 3-mile closed loop through a campground, and if the Court's

speculation that they noticed Thrasher's car is correct, one certainly doubts they

would have intentionally attracted attention to themselves by beginning to

speed. Finally, the District Court's view on the reasonable-suspicion issue maywell have been colored by the fact that "several" other of these essentially

profile stops were made that morning, including stops of four or five four-

wheel drive vehicles, and yet no other drug arrests were made. Id., at 127-128.


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V

If after two days and 450 pages of testimony the District Court concluded that

the reasonableness and articulability of the officers' suspicion presented a

"close question," and if the Court today has less factual information before it

and must rely on questionable inferences to elicit even those few facts upon

which it does rely, one would hope the Court would act with greater restraint

than to speculate whether the "assumption" of reasonable suspicion is

"abundantly" supported by the record. But any such hope would evidently bemerely idle fancy with respect to a Court so anxious to address an unpresented

issue that it blithely hurdles over the jurisdictional and jurisprudential principles

that ought to stand in its way.

61 In my view, the record demonstrates that the lengthy stop at issue in this case

would have been permissibly brief but for the respondents' efforts to evade lawenforcement officials. Accordingly, I agree with the Court's judgment. But

because there is no way to fathom the extent to which the majority's holding

rests on this basis, and because the majority acts with unseemly haste to decide

other issues not presented, I join only its judgment.

62 Justice BRENNAN, dissenting.

63 The respondent William Sharpe and his passenger were pulled over to the sideof the highway, concededly without probable cause, and held for more than 30

minutes, much of that time in the back seat of a police cruiser, before they

ultimately were arrested and informed of the charges against them. In the

meantime, the respondent Donald Savage was stopped one-half mile down the

road, also according to the Court without probable cause. He was ordered out of

his pickup truck at gunpoint, spread-eagled and frisked, and questioned by the

detaining patrolman, Kenneth Thrasher, about a suspected shipment of

marihuana in his vehicle. Although Savage repeatedly asked to be released,Thrasher held him for almost 15 minutes until DEA Agent Luther Cooke, the

officer who had stopped Sharpe back up the road, could arrive and sniff the

vehicle's windows to determine whether he could smell the suspected

marihuana. As Thrasher later conceded, Savage "was under custodial arrest" the

entire time. 4 Record 165.

64 The Court today concludes that these lengthy detentions constituted reasonable

investigative stops within the meaning of Terry v. Ohio, 392 U.S. 1, 88 S.Ct.1868, 20 L.Ed.2d 889 (1968). It explains that, although the length of an

investigative stop made without probable cause may at some point become so

excessive as to violate the Fourth Amendment, the primary inquiry must


20/45

nevertheless be whether the investigating officers acted "diligently" in pursuing

a stop that was no longer than "necessary" to the "legitimate investigation of

the law enforcement officers." Ante, at 687. The Court reasons that Terry §

brevity requirement is in fact an accordion-like concept that may be expanded

outward depending on "the law enforcement purposes to be served by the stop."

Ante, at 685. Applying this analysis to the instant case, the Court concludes that

the lengthy detentions of Sharpe and Savage were reasonable because the delaywas the fault of Savage, whom the Court contends "sought to elude the police"

by speeding away when signaled to stop; had Savage not taken these "evasive

actions," Agent Cooke could have questioned Sharpe and Savage together and

"only a short and certainly permissible pre-arrest detention would likely have

taken place." Ante, at 688.

65 I dissent. I have previously expressed my views on the permissible scope and

duration of Terry stops, and need not recount those views in detail today. See,e.g., United States v. Place, 462 U.S. 696, 710, 103 S.Ct. 2637, 2646, 77

L.Ed.2d 110 (1983) (BRENNAN, J., concurring in result); Kolender v. Lawson,

461 U.S. 352, 362, 103 S.Ct. 1855, 1861, 75 L.Ed.2d 903 (1983) (BRENNAN,

J., concurring); Florida v. Royer, 460 U.S. 491, 509, 103 S.Ct. 1319, 1330, 75

L.Ed.2d 229 (1983) (BRENNAN, J., concurring in result). I write at some

length, however, because I believe the Court's opinion illustrates several

disturbing trends in our disposition of cases involving the rights of citizens who

have been accused of crime. First, the Court increasingly tends to reach out anddecide issues that are not before it. If the facts in this case are as the Court

recounts them, for example, the propriety of these lengthy detentions would not

appear to be governed by the Terry line of cases at all, and the Court's opinion

is therefore little more than 13 pages of ill-considered dicta. Second, the Court

of late shows increasing eagerness to make purely factual findings in the first

instance where convenient to support its desired result. For example, the Court's

conclusion in this case that Savage "sought to elude the police" is a de novo

factual determination resting on a record that is ambiguous at best. Finally, theCourt in criminal cases increasingly has evaded the plain requirements of our

precedents where they would stand in the way of a judgment for the

government. For a Terry stop to be upheld, for example, the government must

show at a minimum that the "least intrusive means reasonably available" were

used in carrying out the stop. Florida v. Royer, supra, at 500, 103 S.Ct., at 1325

(opinion of WHITE, J.).1 The Government has made no such showing here, and

the Court's bald assertion that "[c]learly this case does not involve any delay

unnecessary" to "legitimate" law enforcement, ante, at 687, is completelyundermined by the record before us.

66 * The Court portrays the circumstances leading up to these detentions with a


21/45

studied flourish. Before Sharpe and Savage were stopped, we are told, they

"took evasive actions and started speeding as soon as Officer Thrasher began

following them in his marked car." Ante, at 683, n. 3. When the two were

signaled to stop, Savage's "pickup truck cut between the Pontiac and Thrasher's

patrol car, nearly hitting the patrol car, and continued down the highway."

Ante, at 678. Savage, in other words, "sought to elude the police as Sharpe

moved his Pontiac to the side of the road." Ante, at 688. As a result of Savage's"evasive actions" and "maneuvers," Thrasher had to chase after him and leave

Agent Cooke with Sharpe, thereby laying the groundwork for the challenged

delay. Ibid.

67 If the facts are as the Court relates them, it is not readily apparent why the

Court insists on using this case as a vehicle for expanding the outer bounds of

Terry investigative stops. I had thought it rather well established that where

police officers reasonably suspect that an individual may be engaged incriminal activity, and the individual deliberately takes flight when the officers

attempt to stop and question him, the officers generally no longer have mere

reasonable suspicion, but probable cause to arrest. See, e.g., Peters v. New York,

decided together with Sibron v. New York, 392 U.S. 40, 66-67, 88 S.Ct. 1889,

1904-1905, 20 L.Ed.2d 917 (1968) (companion case to Terry ) ("[D]eliberately

furtive actions and flight at the approach of strangers or law officers are strong

indicia of mens rea, and when coupled with specific knowledge on the part of

the officer relating the suspect to the evidence of crime, they are proper factorsto be considered in the decision to make an arrest"). See also Kolender v.

Lawson, supra, 461 U.S., at 366, n. 4, 103 S.Ct., at 1863, n. 4 (BRENNAN, J.,

concurring) ("[S]ome reactions by individuals to a properly limited Terry

encounter, . . . such as flight, may often provide the necessary information, in

addition to that which the officers already possess, to constitute probable

cause"); Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d

134 (1959) (suspicious circumstances did not ripen into probable cause because

defendants' "movements in the car had no mark of fleeing men or men actingfurtively"); Husty v. United States, 282 U.S. 694, 701, 51 S.Ct. 240, 243, 75

L.Ed. 629 (1931) ("prompt attempt . . . to escape when hailed by the officers,"

when coupled with other suspicious evidence, ripened into probable cause).2

68 Of course, flight alone cannot give rise to probable cause; it must be coupled

with pre-existing reasonable and articulable suspicion. See 1 W. LaFave,

Search and Seizure § 3.6, p. 669 (1978).3 And the act of flight must reasonably

appear to be in response to the presence of the authorities.4 Here, however, theCourt accepts the questionable premise that the officers already had reasonable

suspicion when they decided to stop the vehicles,5 and it boldly concludes that

Sharpe and Savage "started speeding" at Thrasher's approach, that Savage


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II

"sought to elude the police" when Thrasher attempted the stop, and that Savage

took "evasive actions." Ante, at 683, n. 3, 688.

69 Thus if the facts were as the Court describes them, I would be inclined to view

this as a probable-cause detention, and the reasonableness of these stops under

Terry would not appear to be before us. The Court's failure even to consider

this question of probable cause is baffling, but ultimately in keeping with itsrecent practice in Terry cases of reaching out far beyond what is required to

resolve the cases at hand so as more immediately to impose its views without

the bother of abiding by the necessarily gradual pace of case-by-case

decisionmaking. See, e.g., United States v. Place, 462 U.S., at 711, 714-720,

103 S.Ct., at 2646-2647, 2648-2651 (BRENNAN, J., concurring in result);

Florida v. Royer, 460 U.S., at 509, 511, n. 103 S.Ct., at 1330, 1331, n.

(BRENNAN, J., concurring in result).

70 The Court's opinion is flawed in another critical respect: its discussion of

Savage's purported attempt "to elude the police" amounts to nothing more than

a de novo factual finding made on a record that is, at best, hopelessly

ambiguous. Neither the District Court nor the Court of Appeals ever found that

Savage's actions constituted evasion or flight. If we are nevertheless to engage

in de novo factfinding, I submit the Court has taken insufficient account of several factors.

71 First, Savage's actions in continuing to drive down the highway could well have

been entirely consistent with those of any driver who sees the police hail

someone in front of him over to the side of the road. Sharpe's Pontiac was at

least several car lengths in front of Savage's pickup truck; Thrasher thought

there was a separation of "a car length or two," while Cooke testified that the

distance was anywhere from between 30-50 and 100-150 feet. 3 Record 65; 4id., at 139. Approaching in the far-left lane, Thrasher pulled even with Sharpe's

lead vehicle, "turned the blue light on," "blew the siren," and "motioned for

him to pull over." Id., at 145 (emphasis added). Savage moved into the right

lane so as to avoid hitting Thrasher, who was slowing along with Sharpe, and

continued on his way. Neither Cooke nor Thrasher ever testified that Savage

"sought to elude" them, and there is nothing here that is necessarily inconsistent

with the actions of any motorist who happens to be behind a vehicle that is

being pulled over to the side of the road.

72 This view of the record is strongly reinforced by Thrasher's inability on the

stand to give a responsive answer to the question: "Would you say the pickup


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III

A.

truck was attempting to allude [sic] you or just passed you by thinking you had

stopped the car?" 3 id., at 84. Thrasher replied with the nonanswer that "[w]ell,

I was across . . . partially in two lanes and he got by me in the other lane," ibid.

—an observation that could be made about any motorist driving by a stop-in-

progress.

73 Finally, the "[f]ail[ure] to stop [a] motor vehicle when signaled by [a] law-enforcement vehicle" is an independent traffic violation in South Carolina.6

Thrasher testified that Savage was guilty of a number of traffic violations, and

when asked to specify what these violations were he enumerated that (1)

Savage had been speeding through the campground, and (2) the pickup truck

had improper license tags. Id., at 94-95, 99. If Savage in fact had been signaled

to stop his truck and had taken "evasive actions" and "sought to elude the

police," ante, at 688, I find it curious that Thrasher did not include these actions

in his litany of Savage's traffic offenses.

74 None of these factors, singularly or together, show beyond a doubt that Savage

proceeded innocently past the stop of Sharpe. But given that it is the

Government's burden to prove facts justifying the duration of the investigative

detention, Florida v. Royer, supra, at 500, 103 S.Ct., at 1325 (opinion of

WHITE, J.), and given that the courts below never found that Savage "sought

to elude" the authorities,7 the Court's conclusion to the contrary is extremely

disturbing. I do not believe that citizens should be deemed to have forfeitedimportant Fourth Amendment safeguards on the basis of a cold record as

ambiguous as the one before us. Today's opinion unfortunately is representative

of a growing number of instances in which the Court is willing to make de novo

factual findings in criminal cases where convenient to support its decisions.8

Even if the Court had the time and inclination to engage in the "conscientious

and detailed examination of the record" required in fairly making purely factual

judgments of this sort, United States v. Hasting, 461 U.S. 499, 517, 103 S.Ct.

1974, 1984, 76 L.Ed.2d 96 (1983) (STEVENS, J., concurring in judgment),such exercises of our authority would nevertheless be improper. The Court's

institutional role in this context should be focused on resolving "important

questions of federal law" and on "ensuring clarity and uniformity of legal

doctrine," United States v. Young, 470 U.S. 1, 34, 105 S.Ct. 1038, 1056, 84

L.Ed.2d 1 (1985) (BRENNAN, J., concurring in part and dissenting in part),

rather than on serving as the prosecution's factfinder of last resort.9

" "


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,

with the Court that the constitutional propriety of these detentions is governed

by Terry and its progeny. These precedents lead inexorably to the conclusion

that the investigative actions at issue here violated the Fourth Amendment. As

the Fourth Circuit emphasized, the lengthy detentions of Sharpe and Savage did

not accord with Terry's threshold brevity requirement. 660 F.2d 967, 970

(1981).10 But even if the length of these detentions did not alone compel

affirmance of the Fourth Circuit's judgment, the Court today has evaded a

further requirement of our Terry precedents: that "the investigative methods

employed should be the least intrusive means reasonably available to

10 The Fourth Circuit held that "the length of the detentions effectively

transformed them into de facto arrests without bases in probable cause,

unreasonable seizures under the Fourth Amendment." 660 F.2d, at 970. Officer Thrasher himself conceded that Savage was under "custodial arrest" during the

entire stop. 4 Record 165. Far from being merely "the brief and narrowly

circumscribed intrusions" authorized by the Terry line of authority, the

detentions here were "in important respects indistinguishable from a traditional

arrest," and "any 'exception' that could cover a seizure as intrusive as that in this

case would threaten to swallow the general rule that Fourth Amendment

seizures are 'reasonable' only if based on probable cause." Dunaway v. New

York, 442 U.S. 200, 212-213, 99 S.Ct. 2248, 2256-2257, 60 L.Ed.2d 824(1979). See also ante, at 696-698 (MARSHALL, J., concurring in judgment).

verify or dispel the officer's suspicion in a short period of time," and that the

Government bears the burden of demonstrating that it was objectively

infeasible to investigate "in a more expeditious way." Florida v. Royer, 460

U.S., at 500, 505, 103 S.Ct., at 1325, 1328 (opinion of WHITE, J.). The record

before us demonstrates that, for at least four reasons, the Government has not

carried this burden.

11

76 First. Assuming that Savage did not break away from the officers by taking

"evasive actions" to "elude" them—in which instance this is not a Terry case at

all—the Government has not demonstrated why two trained law enforcement

officers driving in separate vehicles, both equipped with flashing lights,12 could

not have carried out a stop of a Pontiac and a pickup truck in such a manner as

to ensure that both vehicles would be stopped together. Reasonable methods for

bringing about the proximate stop of two vehicles readily come to mind; such

methods would have been particularly important if, as the Court assumes, bothofficers knew that only Cooke was capable of carrying out the investigation.

77 Second. If the officers believed that the suspected marihuana was in Savage's


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pickup truck, and if only Cooke was capable of investigating for the presence

of marihuana, I am at a loss why Cooke did not follow the truck and leave

Thrasher with the Pontiac, rather than vice versa.13

78 Third. The Government has offered no plausible explanation why Thrasher, a

trained South Carolina highway patrolman, could not have carried out the

limited Terry investigation of Savage and the pickup truck. Here again,however, the Court makes a bold de novo factual finding to the contrary:

79 "It was appropriate for Officer Thrasher to hold Savage for the brief period

pending Cooke's arrival. Thrasher could not be certain that he was aware of all

of the facts that had aroused Cooke's suspicions; and, as a highway patrolman,

he lacked Cooke's training and experience in dealing with narcotics

investigations." Ante, at 687, n. 5.

80 The record wholly undermines the Court's conclusion. Far from being unaware

of what was going on, Thrasher had conversed with Cooke by radio while they

were following the vehicles and had fully discussed the various factors that

might justify an investigative stop.14 Cooke sought out Thrasher's "professional

opinion" on the situation, and it was Thrasher who ultimately made the

determination that they properly could stop the vehicles.15 Thrasher's

"professional opinion" was that, based on what Cooke had told him and his

own observations, the truck "might be loaded" with marihuana.16 Once he had

stopped Savage, Thrasher not only "held" him, but carried out his own

investigation of the situation. He pointed out that the truck had been riding low

and asked Savage what was inside. He inspected the exterior and even jumped

up on the bumper to test how loaded down the camper might be. 3 Record 87; 4

id., at 150. Moreover, although Cooke certainly had more drug enforcement

experience than Thrasher, there is no reason why Thrasher could not have

conducted the simple sniffing investigation that Cooke later did: Thrasher, like

all South Carolina highway patrolmen, had received basic narcotics detection

training and knew exactly what marihuana smells like. 3 id., at 86.17 He did not

even attempt to smell the windows of the camper shell for two reasons: first,

that was not his assigned "job"; and second, "[m]y sinuses were stopped up that

morning." 4 id., at 164, 178; see also 3 id., at 101.18 Thrasher's sinuses

apparently cleared up several hours later, however, because once the pickup

was at the police station he decided, "[j]ust as a matter of curiosity," to "get

right up on the window" of the vehicle, and reported decisively that "I smelled

some marijuana up around the windows." Ibid. I would have thought that, before the Court chose to uphold a lengthy detention of a citizen without

probable cause based on the "reasonable" ignorance of the detaining officer, it

would have taken the time to get its facts straight.19


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B

81 Finally. The record strongly suggests that the delay may have been attributable

in large measure to the poor investigative coordination and botched

communications on the part of the DEA. Drug enforcement agents were

swarming throughout the immediate area on the morning that Savage and

Sharpe were detained, conducting numerous roadblocks and "profile stops" of

campers and recreational vehicles similar to Savage's. See n. 9, supra. Even

accepting the Court's dubious premise that a highway patrolman is somehowincapable of carrying out a simple investigative stop, it is clear that Cooke had

followed Sharpe and Savage for over 30 minutes and, knowing that a multiple-

vehicle stop was in the offing, should have obtained assistance from other DEA

agents. This was, in fact, precisely what he attempted to do. He repeatedly tried

to contact the area DEA headquarters but complained over his police radio that

"I can't raise anybody else right now." Defendant's Ex. 1, p. 3 (policeband

transcription). He asked the local police dispatcher to telephone the DEA office

to "ask them if anybody there has any contact with me on my DEA frequency." Id., at 4. The dispatcher reported that the line was busy; local police units had

to be sent out to headquarters "to tell these people to get off the telephone." Id.,

at 6. Once the units arrived, it was learned that "[t]here's no one there. They're

all down at the Mar Vista Motel." Ibid. Additional units had to be sent to the

motel to "get those people out of the sack." Ibid. Agents apparently were

eventually located at the motel and at Don's Pancake House, ibid., for by the

time that Cooke returned to the Pontiac to complete the arrests there were

several other DEA agents waiting to assist him, 4 Record 171-172. In themeantime, of course, Cooke had had to request Thrasher as a local backup.

82 Far from demonstrating that these investigative stops were carried out in the

most "expeditious way" using all "reasonably available" investigative methods,

Florida v. Royer, 460 U.S., at 500, 505, 103 S.Ct., at 1325, 1328 (opinion of

WHITE, J.), the record in this case therefore strongly suggests custodial

detentions more accurately characterized as resulting from hopelessly bungled

communications and from Thrasher's unwillingness to tread on Cooke'sinvestigative turf. I do not mean to suggest that Cooke and Thrasher bore the

entire blame for these delays; it was not Cooke's fault that his DEA backups

apparently were sleeping or eating breakfast rather than monitoring their radios

for his calls, and Thrasher might well have felt that it was not his place to carry

out an investigation he apparently was fully capable of conducting. But

constitutional rights should not so easily be balanced away simply because the

individual officers may have subjectively been acting in good faith, especially

where an objective evaluation of the facts suggests an unnecessarily intrusiveexercise of police power.20


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83 We must remember the Fourth Amendment values at stake here. The Framers

understood that "[u]ncontrolled search and seizure is one of the first and most

effective weapons in the arsenal of every arbitrary government," and that "

[a]mong deprivations of rights, none is so effective in cowing a population,

crushing the spirit of the individual and putting terror in every heart." Brinegar

v. United States, 338 U.S. 160, 180, 69 S.Ct. 1302, 1313, 93 L.Ed. 1879 (1949)

(Jackson, J., dissenting). The Framers accordingly provided that individualsshall be arrested and detained only on probable cause—a standard with "roots

that are deep in our history," Henry v. United States, 361 U.S., at 100, 80 S.Ct.,

at 170, and grounded on "a practical, nontechnical conception affording the

best compromise that has been found for accommodating" the "often opposing"

interests of effective law enforcement and individual rights, Brinegar v. United

States, supra, 338 U.S., at 176, 69 S.Ct., at 1311. By requiring that arrests be

made only on probable cause, the Framers sought to preclude custodial

detentions resulting solely from "common rumor or report, suspicion, or even'strong reason to suspect.' " Henry v. United States, supra, 361 U.S., at 101, 80

S.Ct., at 170. Terry and its progeny depart from the probable-cause safeguard,

but only because the sorts of limited intrusions wrought by such encounters fall

"far short of the kind of intrusion associated with an arrest." Dunaway v. New

York, 442 U.S. 200, 212, 99 S.Ct. 2248, 2256, 60 L.Ed.2d 824 (1979).

Detaining officers therefore may briefly question individuals and "ask them to

explain suspicious circumstances, but any further detention or search must be

based on consent or probable cause." United States v. Brignoni-Ponce, 422 U.S.873, 882, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975) (emphasis added).

84 Terry's brevity requirement thus functions as an important constitutional

safeguard that prevents an investigative stop from being transformed into a

custodial detention merely because "the law enforcement purposes to be served

by the stop" are considered important. Ante, at 685. Absent a rigorously

enforced brevity requirement, the Terry rationale "would threaten to swallow

the general rule that Fourth Amendment seizures are 'reasonable' only if basedon probable cause." Dunaway v. New York, supra, 442 U.S., at 212-213, 99

S.Ct., at 2256-2257. As Justice MARSHALL cogently discusses today, the

brevity requirement also serves to compel law enforcement agencies to

"structure their Terry encounters" by employing the resources and methods

necessary to "minimize the intrusions worked by these encounters." Ante, at

693 (concurring in judgment). Similarly, Royer's requirement that the

prosecution demonstrate that the Terry stop was carried out in the most

"expeditious way" using all "reasonably available" investigative methods, 460U.S., at 500, 505, 103 S.Ct., at 1325, 1328 (opinion of WHITE, J.), operates to

ensure that law enforcement agencies commit the manpower, training, and

resources necessary to guarantee that investigative detentions are carried out in


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the least intrusive manner possible. Some may protest that such requirements

impede unduly on law enforcement, but surely these are reasonable tradeoffs

for the authority to seize and detain citizens on less than probable cause. And

while it may be tempting to relax these requirements when a defendant is

believed to be guilty, the standards we prescribe for the guilty define the

authority of the police in detaining the innocent as well. Cf. Brinegar v. United

States, supra, 338 U.S., at 181, 69 S.Ct., at 1313 (Jackson, J., dissenting) ("[A]search against Brinegar's car must be regarded as a search of the car of

Everyman").

85 In this connection, I am particularly disturbed by the Court's suggestion that it

might be constitutionally reasonable for a highway patrolman to hold a motorist

on Terry suspicion pending the arrival of an officer with more "training and

experience." Ante, at 687, n. 5. The Court is of course correct in emphasizing

that Cooke was much more expert at drug detection than Thrasher. I canimagine a great many roadside stop situations in which it might make good

police sense for the detaining officer to hold the motorist indefinitely without

probable cause so that the officer could have an expert interrogator drive out

from the city to conduct the "brief" questioning authorized by Terry, or so that

his more experienced sergeant could be summoned to render a second opinion,

or so that a trained narcotics dog owned by the adjacent county could be driven

out to sniff around the windows. I can also imagine circumstances where, given

the limited number of patrol cars in a community, an officer might prefer tohandcuff a person stopped for investigative questioning to a lamppost while the

officer responded to an emergency call. All of these actions might be preferable

from a law enforcement standpoint. The Framers did not enact the Fourth

Amendment to further the investigative powers of the authorities, however, but

to curtail them: Terry's exception to the probable-cause safeguard must not be

expanded to the point where the constitutionality of a citizen's detention turns

only on whether the individual officers were coping as best they could given

inadequate training, marginal resources, negligent supervision, or botchedcommunications. Our precedents require more—the demonstration by the

Government that it was infeasible to conduct the training, ensure the smooth

communications, and commit the sort of resources that would have minimized

the intrusions. United States v. Place, 462 U.S., at 709-710, 103 S.Ct., at 2645-

2646; Florida v. Royer, 460 U.S., at 505-506, 103 S.Ct., at 1328-1329 (opinion

of WHITE, J.).

86 The Court today has evaded these requirements, failed even to acknowledge theevidence of bungling, miscommunication, and reasonable investigative

alternatives, and pronounced simply that the individual officers "acted

diligently." Ante, at 688. Thus the Court has moved a step or two further in


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IV

what appears to be "an emerging tendency on the part of the Court to convert

the Terry decision into a general statement that the Fourth Amendment requires

only that any seizure be reasonable," United States v. Place, supra, 462 U.S., at

721, 103 S.Ct., at 2652 (BLACKMUN, J., concurring in judgment)—a

balancing process in which the judicial thumb apparently will be planted firmly

on the law enforcement side of the scales.21

87 Justice Douglas, the lone dissenter in Terry, warned that "[t]here have been

powerful hydraulic pressures throughout our history that bear heavily on the

Court to water down constitutional guarantees and give the police the upper

hand." 392 U.S., at 39, 88 S.Ct., at 1889. Those hydraulic pressures are readily

apparent in the outcome of this case. The Court has eschewed narrow grounds

of decision so as to expand the bounds of Terry; engaged in questionable denovo factfinding in violation of its proper mission; either ignored or

misconstrued numerous factors in the record that call into question the

reasonableness of these custodial detentions; and evaded the requirements of

squarely governing precedents. This breed of decisionmaking breaches faith

with our high constitutional duty "to prevent wholesale intrusions upon the

personal security of our citizenry." Davis v. Mississippi, 394 U.S. 721, 726, 89

S.Ct. 1394, 1397, 22 L.Ed.2d 676 (1969). I dissent.

88 Justice STEVENS, dissenting.

89 Both respondents are fugitives.1 Their status raises a procedural question that is

of more significance than the merits of the somewhat fact-bound questions that

the Government's petition for certiorari presented.2 The procedural question is

important because escapes by persons engaged in the lucrative business of

smuggling narcotics are apparently not uncommon,3 and because the fugitive

status of the litigants may have an impact on this Court's disposition of thecase.

90 If a defendant escapes, and remains at large while his appeal is pending, the

appeal will normally be dismissed.4 Over a century ago, in Smith v. United

States, 94 U.S. 97, 24 L.Ed.2d 32 (1876), the Court explained the rationale for

this type of disposition:

91 "It is clearly within our discretion to refuse to hear a criminal case in error,

unless the convicted party, suing out the writ, is where he can be made to

respond to any judgment we may render. In this case it is admitted that the


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plaintiff in error has escaped, and is not within the control of the court below,

either actually, by being in custody, or constructively, by being out on bail. If

we affirm the judgment, he is not likely to appear to submit to his sentence. If

we reverse it and order a new trial, he will appear or not, as he may consider

most for his interest. Under such circumstances, we are not inclined to hear and

decide what may prove to be only a moot case."5

92 Almost a century later, in Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43

L.Ed.2d 377 (1975) ( per curiam ), we further noted that "[d]isposition by

dismissal of pending appeals of escaped prisoners is a longstanding and

establish

united states v. sharpe, 470 u.s. 675 (1985)

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